Molly and Thomas v. Kurinjirappallil Mary and The Maintenance Tribunal

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WP(C) NO. 25339 OF 2021`** ## **`PETITIONER/S:`** ``` 1MOLLY, AGED60YEARS W/O.THOMAS,PARIYATHOTTAMHOUSE,NARIYAMPARA, KOTTAYAD,ALAKODEP.O,TALIPARAMBA, KANNURDISTRICT,PINCODE-670571 2THOMAS, AGED62YEARS S/O.JOHN,PARIYATHOTTAMHOUSE, NARIYAMPARA,KOTTAYAD,ALAKODEP.O, TALIPARAMBA,KANNURDISTRICT,PINCODE570571. BYADVS. S.V.RAJAN SANILJOSE V.K.GAYATHRIDEVI S.HEMANTHSANTHOSH A.N.PREMLAL ``` ## **`RESPONDENT/S:`** ``` 1KURINJIRAPPALLILMARY, AGED82YEARS D/O.PATHROSE,KURINJIRAPPALLILHOUSE,ARANGAM, ALAKKODEDESOM,ALAKODEP.O,TALIPARAMBA, KANNURDISTRICT,PINCODE-670571 2THEMAINTENANCETRIBUNAL, TALIPARAMBA,TALIPARAMBA-P.O, KANNURDISTRICT,PINCODE670141. ``` W.P.(C) No.25339 of 2021 2 ``` BYADVS. GEORGIESIMON TRESAAUGUSTINE BASILCHANDYVAVACHAN ``` ``` SMTMABLECKURIANSRGP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON23.03.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P.(C) No.25339 of 2021 3 ## **JUDGMENT** The petitioners herein are wife and husband, respectively. They are the respondents in an application filed by the 1st respondent under Section 4 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007. 2. The 1st respondent Smt. Mary is a senior citizen. She is the owner in title and possession of 2 Acres of land and the building situated therein. The 1st respondent had an elder brother by the name Mani. The 1st petitioner is the wife, and the 2nd petitioner is the husband of the 1st petitioner. 3. In the complaint filed by the 1st respondent, it is alleged that her brother Mani and his wife used to reside along with her in the residential house bearing No. APXIII/193. While so, Mani passed away on 19.11.2020, and his wife passed away on 08.12.2020. She contends that thereafter the 1st respondent was forcefully evicted from her own home. W.P.(C) No.25339 of 2021 4 In her petition before the Tribunal, her prayer was to order the respondents to vacate the house owned by her and to grant vacant possession. 4. The 2nd petitioner entered appearance before the Tribunal. According to him, without hearing his version, the Tribunal issued Ext.P3 order ordering the petitioners to vacate the building within a period of two months. 5. Smt. Gayathri Devi, the learned counsel appearing for the petitioners, submitted that the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, do not empower the Maintenance Tribunal to pass an order in the nature of Ext.P3. Reliance is placed on a judgment rendered by this Court in **C.K. Vasu v. Circle Inspector of Police and Others** [2012 SCC OnLine Ker 10658], and it is submitted that the Tribunal constituted under the Act can only pass an order of maintenance against the children or the relative as the case may be and that the Act would not empower the Tribunal to order eviction. The learned counsel would refer to the law laid down by this Court in W.P.(C) No.25339 of 2021 5 **Leelamma Eapen v** . **District Magistrate, Kottayam, and Others** [2022 (2) KLT 665] and **Thoppil Anto v. Glancin T A and Others** [2020 (6) KLT 771] to substantiate her contention that Ext.P3 is passed in excess of jurisdiction and cannot be enforced under law. 6. Sri. Georgie Simon, the learned counsel for the 1st respondent, submitted that Sri. Mani, the father of the 1st petitioner, along with his wife, had resided along with the 1st respondent in the residential home which is owned by her on the strength of Ext.R1(a) deed. He contends that the 1st respondent was forcefully evicted from the home, and she is now residing with her brother’s son at Nariyampara. He would further contend that the 2nd petitioner has instituted O.S.No. 435/2022 before the Munsiff Court seeking various reliefs, and the said suit is pending. The learned counsel would rely on **Thoppil Anto v. Glancin T A and Others** [2020 (2) KLT 176], and it is argued that the enactment confers ample powers on the District Magistrate to enable a senior citizen to live with respect, security, and dignity and it was well within the powers of the Maintenance Tribunal to make over the matter to W.P.(C) No.25339 of 2021 6 the District Magistrate to pass orders invoking Rule 9 of the Maintenance and Welfare of Parents and Senior Citizen Rules. 7. I have considered the submissions. The Maintenance Tribunal has issued the order on a petition filed by the 1st respondent, and the petitioners have been ordered to vacate the residential home. As held by this Court in **C.K.Vasu** (supra), the Tribunal constituted under the Act can only pass an order for maintenance of a senior citizen or the parent unable to maintain himself if the Tribunal is satisfied that there was neglect or refusal on the part of the children or relatives to maintain him. The Act does not empower the Tribunal constituted under the Act to grant an order of eviction. In that view of the matter, the impugned order cannot be sustained, and the same is liable to be quashed. 8. However, this Court has made it clear in **Thoppil Anto** (supra) that notwithstanding the fact that an application for eviction may not be maintainable before the Maintenance Tribunal, the right of the senior citizen would not be foreclosed, and order in the nature of Ext.P3 can be passed by the District Magistrate concerned or the District W.P.(C) No.25339 of 2021 7 Magistrate may even authorize the Maintenance Tribunal to decide the matter himself. 9. Having considered the entire aspects, I am of the view that the petitioners are entitled to succeed. However, this shall not prevent the 1st respondent from approaching the District Magistrate and seeking appropriate orders under Rule 19 of the Maintenance and Welfare of Parents and Senior Citizens Rules. 10. This writ petition is accordingly disposed of by ordering as under: a) Ext.P3 order will stand quashed. b) It would be open to the 1st respondent to approach the District Magistrate by invoking Rule 19 of the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, and if any such complaint is lodged, the District Magistrate shall ensure that the life and property of the 1st respondent are protected, and she is able to live with security and dignity. Appropriate orders shall be passed, expeditiously, in any event, within six weeks from the date of receipt of a W.P.(C) No.25339 of 2021 8 copy of this judgment with notice to the petitioners as well as the 1st respondent, taking note of the law laid down in **Thoppil Anto** (supra). # Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS W.P.(C) No.25339 of 2021 9 ## **`APPENDIX OF WP(C) 25339/2021`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP1THETRUECOPYOFTHERESPONDENT'S APPLICATIONDATED13.01.2021INMCCNO. 3/2021BEFORETHEMAINTENANCETRIBUNAL, TALIPARAMBA. ``` ``` ExhibitP2THETRUECOPYOFTHENOTICEDATED30.07.2021 ISSUEDBYTHEMAINTENANCETRIBUNAL, THALIPARAMBAINMCCNO.03/21ISSUEDTOTHE PETITIONERS1AND2. ExhibitP3THETRUECOPYOFTHEORDERDATED10.08.2021 PASSEDBYTHEMAINTENANCETRIBUNAL, TALIPARAMBA,INMCCNO.3/2021. ``` ``` ADDITIONALEXHIBITP4THETRUECOPYOFTHEORDEROFINJUNCTION DATED02/09/2022INOSNO435/2022ONTHE FILEOFTHETHALIPARAMBAMUNSIFFCOURT ``` ``` ADDITIONALEXHIBITP5THETRUECOPYOFTHECOUNTERAFFIDAVITFILED BYDLANDD4INOSNO435/2022DATED 05/11/2022ONTHEFILEOFTHETHALIPARAMBA MUNSIFFCOURT. ``` ``` ADDITIONALEXHIBITP6THETRUECOPYOFTHEWRITTENSTATEMENTFILED BYR2INOSNO435/2022DATED21/09/2022ON THEFILEOFTHETHALIPARAMBAMUNSIFFCOURT. ``` ``` ADDITIONALEXHIBITP7THETRUECOPYOFTHEPLAINTINOSNO11/2023 DATED20/02/2023ONTHEFILEOFTHE THALIPARAMBAMUNSIFFCOURT. ``` ``` ADDITIONALEXHIBITP8THETRUECOPYOFTHEORIGINALPETITIONINMC NO156/2021DATED20/12/2021ONTHEFILEOF ``` W.P.(C) No.25339 of 2021 10 ``` THEJUDICIALFIRSTCLASSMAGISTRATECOURT THALIPARAMBA. ``` ``` ADDITIONALEXHIBITP9 ``` ``` THETRUECOPYOFTHESTATEMENTOFOBJECTION FILEDBYTHEPETITIONERHEREINMCNO 156/2021DATED23/09/2022ONTHEFILEOFTHE JUDICIALFIRSTCLASSMAGISTRATECOURT THALIPARAMBA. ``` ``` RESPONDENT(S)EXHIBITS ``` ``` EXT.R1(a) ``` ``` EXT.R1(b) ``` ``` EXT.R1(c) ``` ``` REGD.JENMAMDEEDNO.1568/1981OFSRO TALIPARMABA(TRUECOPY)24.03.1981 ``` ``` TRUECOPYOFOSNO.435/2022DATED1-9-2002 ``` ``` DISCHARGESUMMARYOFRESPONDENTNO.1 ADMITTEDATP.R.R.MCO-OPERATIVEHOSPITAL ALAKODEFROMTHEPERIODOF12.03.22TO 19.03.22. ```